The government’s EU settlement scheme requiring EU citizens with pre-settled status to reapply after five years or risk losing their right to live in the UK has been ruled unlawful by the High Court.

The EU settlement scheme began in March 2019, requiring EU citizens to apply for settled status if they wished to continue living in the UK. This status entitles them to live, work and study in the UK as well as giving them the right to healthcare, education and benefits.

Those who had been in the UK for less than five years were generally given pre-settled status, not settled status, unless they were eligible on other grounds, such as being the child of someone with settled status.

Around 2.7 million individuals currently hold pre-settled status and have been told that they need to live continuously in the UK for five years before they can apply for settled status. Those who fail to apply for settled status within five years of being granted pre-settled status would automatically lose their right to live in the UK.

The High Court case

The Independent Monitoring Authority (IMA), a government-funded watchdog organisation that safeguards citizens’ rights, asked the High Court to rule whether this legislation is lawful or if it breaches the terms of the EU withdrawal agreement.

The IMA was set up under the terms of the agreement and brought the case in advance of those with pre-settled status having to make further applications. The first 200,000 individuals who were granted pre-settled status have until August 2023 to ask the Home Office for settled status or risk losing their rights of residence.

The IMA argued that the requirement to apply to the scheme for a second time or lose the right to live in the UK was incompatible with the withdrawal agreement conditions.

Court ruling

The High Court agreed, saying that pre-settled status is “wrong in law and that the EU settlement scheme is accordingly unlawful” because it “purports to abrogate the right of permanent residence”.

Justice Lane said: “The consequence of limited leave coming to an end, without being followed by further leave, is extremely serious.

“The person concerned becomes an overstayer, who from that point is in the United Kingdom unlawfully.

“A person who knowingly remains beyond the time limited by the leave commits a criminal offence. In my judgment, these consequences cannot be brushed aside as merely procedural matters.”

He also stated that the withdrawal agreement set out specific situations in which the right of residence would be lost and that failure to apply to upgrade from pre-settled status to settled status was not one of those situations.

Critics of the government’s scheme hold that scheme does not provide the same rights to all EU citizens who have applied to settle in the UK and that it leaves some individuals at risk of losing their rights if they omit to make a second application.

They feel that promises made at the time of Brexit were of an automatic right to stay for all EU citizens and that the current scheme does not supply this.

The Home Office minister, Lord Murray, said, “The EU settlement scheme goes above and beyond our obligations under the withdrawal agreement, protecting EU citizens’ rights and giving them a route to settlement in the UK.

“We are disappointed by this judgment, which we intend to appeal.”

Contact our expert UK immigration solicitors

If you are an EU citizen holding pre-settled status and you would like to discuss your options with an immigration expert, we will be happy to help.

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